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Surgeons are increasingly using laparoscopic techniques, especially when undertaking cosmetic surgical procedures. Complications following surgery are rare, however medicolegal cases are not uncommon due to the significant impact they can have on patients’ lifestyles.

The majority of cases reported to us relate to elective surgical procedures undertaken outside the NHS. Patients who opt for elective surgery can choose to proceed with it at any time, or not at all.

Clinical negligence claims in general surgery can sometimes lead to large financial settlements. The value of the settled claim will often include compensation for care and loss of earnings, in addition to an award for damages resulting from a breach of duty. Complications can result in permanent damage or serious loss of function and this sees the value of claims vary enormously. Our highest general surgery case payment (claimant damages, costs and legal costs) is well in excess of £2.3 million.

We understand you work in complex and often pressured environments. We also know, following feedback from members, that experiencing a medicolegal case can be incredibly stressful. At Medical Protection we want to share our knowledge, experience and expertise with you so we can provide invaluable professional support.

Analysis

We’ve analysed the support we provided UK-based general surgery members in almost 2,400 cases. In addition to advising and assisting in writing medical reports in 860 of these cases, we have supported our members in relation to more than 1,500:

Claims, as in demands for monetary compensation that embodies allegations of negligence.

Preclaims, which are intimations from a claimant of a possible claim for compensation.

Complaints.

General Medical Council (GMC) investigations.

Local disciplinary procedures.

Inquests.

We have studied all claims including those defended, not pursued and settled. We feel sharing our learnings about why patients decide to take action – and the reasons why claims are settled is valuable.

Case types

Figure 1.General surgery procedures leading to patients making a claim and common contributory factors.

The highest number of claims related to hernia repair surgery. The majority of claimants suffered complications such as damage to testicles leading to atrophy, obstructed or perforated bowel, bladder damage, nerve damage, peritonitis, abscess, fistula or haematoma formation. In some cases, further surgery was required, such as bowel resection, ileocolic anastomosis or ileostomy.

In a third of claims there was failure to warn of possible complications or provide information on the alternatives to the procedure. There was evidence of inadequate consent regarding explaining risks of chronic pain or discomfort, recurrence of hernia, and mesh complications requiring further surgery, such as separation or removal of the mesh.

There were cases of inappropriate surgery, including open hernia repairs being performed when laparoscopic surgery was expected and single hernia repairs when bilateral repair was expected.

In some cases there were failures to provide perioperative anticoagulation, despite previous pulmonary embolism, leading to further thromboembolic events. From our analysis inguinal, incisional, umbilical and para-umbilical were the most common hernias claimed for.

Our highest hernia surgery total case payment was in excess of £410,000.

Bariatric surgery

The second most frequent source of claims was bariatric surgery, with some claimants suffering complications, such as perforation to the oesophagus, stomach or small bowel. On occasion bowel damage was not recognised at the time of surgery, postoperative monitoring was inadequate and there were delays in surgery to repair the damage. As a consequence, some patients required intensive care with a prolonged recovery period.

Other claimants experienced complications relating to their gastric bands not functioning, band erosion or recurrent infections – particularly at the port sites. Often patients returned within one to two years due to a lack of weight loss or gastrointestinal symptoms. Many required further surgery to diagnose and correct band slippage, migration, erosion or gastric ulcers.

In a quarter of cases settled there was inadequate consent with insufficient advice about alternative treatments or a failure to warn of the risks, such as band dislodgement or erosion and a requirement for further surgery. In some claims following gastric bypass procedures, there was evidence of incorrect supplement prescribing leading to vitamin deficiencies.

Our highest gastric band surgery total case payment was in excess of £850,000.

Laparoscopic cholecystectomy

The third most frequent procedure leading to claims was laparoscopic cholecystectomy and a common theme was around inadequate postoperative care.

There were delays in recognising and treating post-operative complications, which included bile leaks, bowel perforations, gallstones, pancreatitis and strictures. Some patients required readmission to hospital and further surgery.

Our highest laparoscopic cholecystectomy total case payment was in excess of £280,000.

CASE STUDY

Issues arising from a misdiagnosis and a surgeon acting outside their area of expertise

This case study is based on a real scenario, with some facts altered to preserve confidentiality.

A 49-year-old woman with known gallstones and previous episodes of biliary colic was admitted to hospital with cholecystitis. Following admission, the patient elected to undergo laparoscopic cholecystectomy in the private sector five weeks later.

At surgery, a tense, pus-filled gallbladder was noted. After adhesiolysis, what was believed to be the cystic duct and artery were doubly clipped and divided.

The patient was discharged home the day after the surgery but became jaundiced a few days later. An ultrasound demonstrated a 7cm x 8.5cm collection in the gallbladder bed consistent with the recent resection, a calculus in the proximal common duct and dilated intra-hepatic ducts. The common bile duct was largely obscured by the collection in the gallbladder bed.

The patient was referred for endoscopic retrograde cholangiopancreatography (ERCP), which identified two groups of clips; the superior group in the approximate location of the porta hepatis and a second group in the region of the cystic duct. Retrograde cholangiography showed significant obstruction by the lower group of clips. It was considered that these clips appeared to transverse the common bile duct.

The patient underwent open surgical exploration, conducted by the original general surgeon, which identified a clipped and transected common bile duct. The clips were removed and the duct repaired over a T-tube. The patient’s jaundice resolved and the T-tube was removed after eight weeks.

However, a year later the patient again became jaundiced due to a stricture in the common bile duct. They underwent reconstruction with a hepaticojejunostomy by a hepatobiliary specialist surgeon at a tertiary centre.

The patient made a claim against the original surgeon, alleging that at the time of the original surgery there was a failure to adequately identify and dissect out the anatomy, with clipping and transection of the common bile duct instead of the cystic duct. As a consequence of the further surgeries, the patient had ongoing right upper quadrant pain and developed an incisional hernia which also required repair.

When commenting on the allegations, the surgeon gave the view that the operation had not been straightforward due to dense adhesions, and the anatomy had been anomalous. However, the contemporaneous operation note did not reflect this – it described an uncomplicated procedure.

The claim was settled for a sum in excess of £200,000 because:

The operation record suggested the anatomy had been defined following adhesiolysis, with the cystic duct and artery being skeletised, doubly clipped and divided. It was clear from subsequent events that the common bile duct had been inadvertently clipped and transected.

The surgeon failed to confirm the cystic duct and artery as the only two structures entering the gallbladder.

As the empyema of the gallbladder would have made cholangiography difficult, the surgeon should have converted to an open procedure.

It was not appropriate to perform an end-to-end repair of the common bile duct, given the operating surgeon was not a hepatobiliary specialist. The patient should have been referred to a tertiary referral centre for consideration of hepaticojejunostomy.

Had the procedure been converted to an open cholecystectomy it is likely that further surgical procedures would have been avoided. Ongoing pain and an incisional hernia would not have occurred.

LEARNING POINTS:

If the anatomy is unclear or other difficulties are experienced during laparoscopic surgery, consideration should be given to converting to an open procedure.

A surgeon should not act outside their areas of expertise and must have appropriate competence and experience to carry out the proposed operation.

It is difficult to defend any subsequent claim arising from the performance of a surgical procedure when comments from the surgeon at a later date contradict the contemporaneous documentation.

Cosmetic breast surgery

Common claims following cosmetic breast surgery related to augmentation and mastopexy. Many patients experienced unsatisfactory results including asymmetrical breasts, scarring, seroma formation or dissatisfaction with the position of their nipples. In some case this led to depression, feelings of disfigurement or back pain.

In many of the claims that were settled, there was evidence of inappropriate decision-making and inadequate consent and poor advice. We found one theme of a failure to adequately consent about the risks including implant rupture, and leakage of silicone resulting in prolonged discomfort and need for further surgery.

A second theme was of a failure to manage expectations with respect to the possible outcomes. There were cases where the wrong size of implants were inserted, with many patients undergoing revision surgery with further unsatisfactory outcomes. Some claimants had additional operations such as abdominoplasty or liposuction, with a handful requiring more than one revision operation.
Our highest breast augmentation surgery total case payment was in excess of £175,000.

Never events – Retained swabs and instruments

Despite being classified as a ‘never event’ across the NHS, we continue to see claims arising from these.

We have analysed the complaints where we’ve supported general surgeons, including complaints from NHS and private practice. These were quite varied and sometimes related to multiple concerns. Most of the complaints were from patients, but some were from other healthcare professionals.

The common themes were:

Poor communication, manner and attitude during a consultation, such as being unhappy with their doctor or colleague’s manner and attitude, rudeness during the consultation and inappropriate comments.

Unexpected outcomes following surgery. This was often triggered by dissatisfaction with the consent process, including inadequate discussion of risks and treatment options.

Failure and delays to diagnose, including delays in detecting postoperative bleeding, peritonitis, obstruction and alleged failure to diagnose cancer.

We are aware of the immense pressure and stress that many doctors go through during these investigations. We always aim to provide members with tailored care and expert support.

GMC cases have followed referral from patients, relatives or colleagues, both senior and junior. There was a mix of clinical and non-clinical concerns. Some investigations relate to more than one concern or a series of serious clinical incidents. The common themes were:

Performance concerns such as operative skills, clinical judgement and poor communication, for example poor manner and attitude during a consultation.

Please note this is not an exhaustive list of recommendations but key learning points from our analysis:

Listen to what your patient would consider to be a successful outcome. Understand their concerns and expectations.

Discuss the possible benefits and risks of all potential treatment options. Consider what is most important to each patient, taking into account their current employment.

Be honest and let your patient know if the surgery can give them the result they want.

Explain what the procedure will involve, the likely results and when you’ll see them afterwards.

Explain frequent and serious complications and the implications for the patient if these occur. Explain what you would do to correct complications or if you failed to meet their expectations. Document these discussions.

Be explicit about the risks of laparoscopic surgery. When a patient is expecting small scale surgery and experiences a major complication they may wish to pursue a claim.

Double-check that the information has been understood and decisions are correctly informed.

Never pressurise or rush patients into giving consent to have surgery (for example, by offering discounts or special offers that are for a limited time only).

For elective operations always leave sufficient time (at least a week) after the consultation before scheduling the procedure. This allows the patient time to think things through, talk to their family or access more information.

Your patients should be given clear information about ALL the costs involved, and what their rights are to a refund/return of deposit if they change their mind after having paid some or all of the costs.

Ensure your surgical technique is regularly updated and in line with current best practice such that it would be supported by your peers.

Ensure you are fully indemnified to carry out the relevant procedure in the UK.

Ensure close monitoring takes place after surgery and any deterioration is managed in a timely and appropriate fashion.

When things go wrong, the vast majority of patients just want two things: an explanation and an apology.

Be open and honest with patients and their families. Be welcoming, listen to feedback and address concerns promptly and in the spirit of co-operation.

Ensure accurate and clear documentation. This may need to be relied upon years after the event and is the cornerstone of any medicolegal defence.

Get more advice about the topics in this collection with our online factsheets and booklets. The resources also cover other topics crucial to your practice and are available whenever you need them at medicalprotection.org.

About the authors

John Jolly provides advice and educational support to help members reduce their risk of experiencing medicolegal cases. He is a former associate postgraduate dean and consultant obstetrician and gynaecologist, and joined Medical Protection in 2015.

Dr Heidi Mounsey provides advice and support in relation to clinical negligence claims. She is a former anaesthetic registrar and is a fellow of the Royal College of Anaesthetists. She joined Medical Protection in 2016.

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